Tuesday, May 31, 2016

A Field Guide to Hater Judges

Over the holiday weekend, Republican presidential candidate Donald Trump spent 12 minutes of an hour-long speech in San Diego criticizing a sitting federal judge. Gonzalo Curiel (biography) of the Southern District of California is presiding over a fraud lawsuit against the candidate's now-defunct Trump University, filed in 2010 and scheduled for trial in late November. The Wall Street Journal published excerpts of Trump's speech, which is also available at C-SPAN in video and full transcript:
"I have a judge who is a hater of Donald Trump, a hater. He's a hater. His name is Gonzalo Curiel […] He is not doing the right thing. [...] The judge was appointed by Barack Obama, federal judge. Frankly, he should recuse himself because he's given us ruling after ruling after ruling, negative, negative, negative. […] I'm telling you, this court system, judges in this court system, federal court, they ought to look into Judge Curiel. Because what Judge Curiel is doing is a total disgrace, OK?"
Trump also remarked upon Curiel's ethnicity: "the judge, who happens to be, we believe, Mexican, which is great. I think that's fine." In his appearance on a Sunday news program, he unpacked that comment further, connecting Curiel's alleged distaste for Trump to the candidate's campaign pledges about border security and immigration: "I think it has to do with perhaps the fact that I'm very, very strong on the border […] Now he is Hispanic, I believe. He is a very hostile judge to me."

Hours later, Judge Curiel issued an order to unseal selected exhibits in the Trump University suit, including Trump University "playbooks" which the defendants claimed contain trade secrets. The order noted that Donald Trump "has placed the integrity of these court proceedings at issue," referencing several published interviews. (A staff member at the court told the Wall Street Journal that the judge could not respond directly to the speech's allegations, citing the Judicial Code of Conduct.)

Should Trump's legal team wish to file a bias complaint against Curiel, they might have a tough road ahead. Judicial discipline at the federal level is outlined in the U.S. Code and complaints are handled at the level of the appropriate U.S. Court of Appeals. (For more details, see the 2011 Congressional Research Service report Judicial Discipline Process: An Overview.) The Ninth Circuit, which includes California federal courts, offers an information page for judicial misconduct, but notes that "Congress has created a procedure that permits any person to file a complaint in the courts about the behavior of federal judges—but not about the decisions federal judges make in deciding cases. […] Almost all complaints in recent years have been dismissed because they do not follow the law about such complaints."

Trump's allegations of bias seem out of step with Curiel's evaluations in the Almanac of the Federal Judiciary (AFJ) (Duke NetID required for link), a long-running directory of sitting federal judges which includes comments from lawyers who have appeared before that judge. The anonymous comments in AFJ can occasionally be blistering, but Curiel garnered praise across the board for his fairness ("he listens to both sides and tries to judge fairly"), his courteous courtroom demeanor ("I have nothing negative to say about him"), and his lack of apparent leanings ("He's not naturally inclined towards plaintiffs but he doesn't have leanings"). Members of the Duke University community may access the AFJ in Intelliconnect; current Law School community members can also access AFJ within Westlaw.

To locate other sources of information about judges, check out the Goodson Law Library Directories of Courts & Judges research guide. To track the Low v. Trump University lawsuit developments, try the research guide to Court Records & Briefs. For other legal research questions, be sure to Ask a Librarian.